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www.michelmores.com Types of occupational arrangements Differences: Lease Grants an estate in land Binds and benefits successors Significant statutory and legal protection for occupier Tenancy at Will Type of lease Terminable by either party at any time at will No notice required Little statutory and legal protection for occupier Licence Purely a personal right/permission Little statutory or legal protection

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www.michelmores.com Licences - warning Beware granting licences to occupy Easy for licence to be a lease A licence granting exclusive possession (particularly for a licence fee) is likely to be a lease It doesn’t matter if it’s called ‘licence’ Relocation clauses – but exercised in practice? ‘Sham’ licences will not work Cont’d….

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www.michelmores.com Licences - warning "The manufacture of a five pronged implement for manual digging results in a fork…even if the manufacturer insists that he intended to make and has made a spade.“ "Parties cannot turn a tenancy into a licence merely by calling it [a licence].“

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www.michelmores.com Tenancies at Will - warning A tenancy at will may be or become a more formal lease if its terms are inconsistent with an arrangement terminable at will For example: Termination notice period required Fixed term Forfeiture provisions Rent suspension provisions Been in existence for a long time Tenant must pay rent in advance for a lengthy period

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www.michelmores.com Short term leases - warning Beware – lease of up to 3 years at best rent reasonably obtainable can be granted orally Use a formal document to avoid uncertainty and disputes LSO precedent short term lease

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www.michelmores.com 1954 Act why does it matter? Automatic renewal rights Renewal on same/similar terms Possession can only be recovered if Landlord can establish 1 of 7 grounds – most commonly redevelopment

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www.michelmores.com 1954 Act - application Applies to: a tenancy of premises occupied by Tenant for purposes of a business carried on by Tenant

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www.michelmores.com “Tenancy” Doesn’t apply to licences or tenancies at will There must be a tenancy Tenancy can be periodic

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www.michelmores.com “Premises” Not confined to buildings Is the land legally capable of being occupied? Examples

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www.michelmores.com “Occupation” Doesn’t have to be continuous Applies where only part of premises are occupied “an element of control and user and involves the notion of physical occupation” Test: does the Tenant have day to day control

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www.michelmores.com “Business” purposes Doesn’t actually have to be business itself Ancillary activities can constitute “business” Test varies depending on whether tenant is an individual or company Cont’d….

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www.michelmores.com Contracting Out - Beware Lease of 6 months or less – has there been previous occupation by tenant (or its predecessor) for more than 12 months? Does the lease term refer to any statutory continuation? Variations to lease terms

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www.michelmores.com Telecomms/data apparatus agreements Beware of Electronic Communications Code – draconian rights To enforce removal or relocation of apparatus, landowner must serve statutory notice Operator can serve counter notice Landowner must then obtain a court order to enforce removal/relocation – Code favours operators? Landowner may have to pay operators costs of carrying out works Operators can seek court order to force landowners to grant agreements Negotiating issues to consider: Prohibition of site sharing and additional equipment If lease, contract out from 1954 Act Operator will require non-interference with apparatus

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www.michelmores.com Scenario 1 Mr Brown has approached Avalon University to ask if he can use one of the University’s empty portakabins to make some wooden bowls that he sells on ebay. The portakabin is of no use to the University at the moment, but it does sit on land that may wish to develop in the medium term. Given the amount of rent Mr Brown will be paying the decision is reached that there is no need to formally document the arrangement. Mr Brown goes into occupation and pays his rent monthly. 18 months later Avalon University is approached with an attractive offer to develop the land by way of a joint venture, albeit on condition that vacant possession is provided within 6 months. Problems? Cont’d….

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www.michelmores.com Scenario 2 Avalon University has identified some rooms that have been hired out to a local brass band on the basis of a contractual Licence for an initial fixed term of 12 months with a monthly licence fee being payable. The Licence contains “lift and shift provisions”, although in the 4 years that the brass band have occupied the rooms Avalon University has never sought to move them to another location. The University can technically still access the rooms, but again haven’t done so in practice. The brass band store their trumpets etc in one of the rooms permanently, but only meet once or twice a week to rehearse. They can be hired for functions. Problems? Cont’d….

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www.michelmores.com Scenario 2 Points to Note Exclusive possession? It doesn’t have to be business activity “Licence fee” – rent?

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www.michelmores.com Scenario 3 A sandwich shop is in occupation of one of Avalon University’s premises on the basis of a contracted out lease. The sandwich shop wants to diversify and start selling cakes and has been approached by Mrs Miggins to use one of their back rooms at the premises for decorating her cakes which can then be sold in the sandwich shop. Mrs Miggins only uses the premises on Tuesdays and Fridays. The owners of the sandwich shop suggest it might be easiest if Mrs Miggins pays the University direct for her occupation. Avalon University accepts the payments and starts to invoice Mrs Miggins direct. Problems? Cont’d….

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www.michelmores.com Scenario 4 Avalon University is building a parade of on campus retail outlets. Big Juice has agreed to take one of the units, but no formal agreement for lease is completed. Pending practical completion in 2 years time, Big Juice requires occupation of an existing unit on campus is applying pressure for occupation ASAP. It says there’s no time to negotiate and exchange interim documentation, but that its standard supply Ts and Cs with third party landowners say “The landowner allows Big Juice sole use of the relevant premises for a fee of £40,000pa payable quarterly in advance on the usual quarter days”. 2 years later, the new unit is built and Avalon University needs to grant a lease of the existing unit to someone else. But Big Juice refuse to move saying they do not like the new unit, the existing unit is in a better location from which trading has been good. Problems?Cont’d…

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www.michelmores.com Scenario 4 Points to note No formal agreement for lease – very difficult to force Big Juice to relocate Periodic, 1954 Act protected tenancy of existing unit Ransom issue if one of statutory grounds can’t be made out Problems with relying on Big Juice’s Ts and Cs to document occupation – what premises, extent of premises, who’s responsible for repairs etc?

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www.michelmores.com Scenario 5 Starting in November each year, Mr Potato sets up a mobile jacket potato stand on the corner of one of Avalon University’s concourses, and occupies the same space daily from Monday to Friday. He only does this from November to February and so it isn’t considered to be a problem. He pays the University an annual fee of £700 and in return he is allowed to hook up his cart to an electricity supply. He attends the same spot every year. Problems? Cont’d….

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www.michelmores.com Scenario 5 Points to Note Doesn’t have to be buildings to constitute tenancy Occupation doesn’t have to be continuous, can be seasonal if there’s sufficient continuity Annual fee may create an annual periodic tenancy Is there exclusive possession?

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www.michelmores.com Scenario 6 Filmbuster has a contracted out lease of one of Avalon University’s properties, which expired a year ago. Negotiations were originally under way for the grant of a new contracted out lease, but stalled approximately 6 months ago. Filmbuster has remained in occupation throughout paying their rent monthly. Problems? Cont’d….

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